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CCCA_V2No4_Dept-Technology-FIN.qxd:CCCA_V1No2_Dept-CourtLeg-V1.qxd 11/24/08 2:42 PM Page 15 In-House Technology Preparing for e-discovery Why firms need data retention policies, and how to be prepared for the type of litigation that may lie ahead. — Sedona Working streamlining a process, it’s a way of really Group 7, or Sedona trying to eliminate information that you Canada — to tackle the don’t need to keep from a corporate per- same issues.The first draft spective,” says Felsky. of The Sedona Canada In other words,companies need to think Principles was published in about what information to keep, for April 2007. Ontario and how long, and when to destroy it, says British Columbia have also Peg Duncan, a member of the Sedona drafted their own set of stan- Canada team and content manager of dards, specific to each province. the E-Discovery Canada web portal But the question for corporate (www.lexum.umontreal.ca/e-discovery). counsel remains: how can the company This means talking with the company's streamline e- discovery and contain costs? IT department. First, be prepared early before any liti- Corporate counsel needs to know what mong in- gation hold has been placed on the firm's happens in the IT group — for example, A h o u s e information. “It’s much like disaster how it handles the email cache and hard counsel’s many jobs is recovery planning, but for electronic dis- drives of departed employees, as relevant preparing for discovery in the covery,” says Martin Felsky, CEO of information may be stored there. They event of litigation. Outside Quebec, Commonwealth Legal Inc. and a member should also inquire about server backups. each party in Canada has a positive duty of the Sedona Canada e-discovery work- Some corporations backup their servers to produce potentially relevant docu- ing group. every month and keep the tapes indefi- ments. Considering the amount of infor- Depending on the size and nature of nitely, Duncan points out. These tapes mation that is exchanged electronically, the organization, this may involve hiring a would be subject to discovery,and retriev- this discovery could entail thousands, technology counsel to serve as the person ing the information on them could even millions, of documents, files, tapes, responsible for the review and manage- become quite expensive. Corporate coun- disks, emails, voice messages, and so on. ment of the corporation’s information. If sel ought to be assessing the business rea- By some estimates, more than 90 percent the company is smaller or doesn’t have a son for keeping this information, failing of information is created in digital which it should be destroyed format today, creating a real according to an established policy. This daunting prospect of e-dis-“ headache — and real costs — for The best way to save money Which brings us to the next inside counsel and their company. in e-discovery is to make sure step: prepare a formal document retention/destruction policy, fol- covery has been the subject of much you follow the Sedona Principle low it, and review it periodically. discussion and research in recent of ‘meet and confer.’ The policy should include guide- years. In 2004, the Sedona great deal of litigation, hiring an outside” lines on the use and destruction of Conference Working Group on email. By formalizing a policy for Electronic Document Retention and when, where, and what can be destroyed, Production,a group of U.S.lawyers,judges, consultant to help assess the extent of the the company avoids long, possibly unnec- ISTOCKPHOTO and IT professionals,recommended a set of company’s information burden and how essary, searches through reams of data and also has a reasonable defence against claims to get it under control may be enough. basic principles and best practices. Two “Litigation preparedness isn’t just a way of of spoliation. years later, a similar group met in Canada HIVER 2008 CCCA Canadian Corporate Counsel Association 15